Dhrub @ Girish Kumar vs State Of Himachal Pradesh

Anoop Chitkara, J

FIR No.

Dated

Police Station

Sections

35/2021

21.6.2021

Nerwa, Distt. Shimla

21-61-85, NDPS Act

The petitioner, incarcerating upon his arrest, for possessing forty bottles of syrup containing Codeine Phosphate and Chlorophenramine, Maleate syrup, which falls in the definition of commercial quantity, has come up before this Court under Section 439 of CrPC, seeking bail.

A perusal of the petition reveals that the petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a three Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 & 15), wherein the Full bench holds that a person can directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.

In Para 11 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the accused.

Briefly, the allegations against the petitioner are that as per the case of the prosecution, a police party was on patrolling duty on 21.6.2021. At about 7.30 p.m. one motorcyclist, on noticing the police officials, tried to reverse his bike. Such conduct of the motorcyclist raised suspicion in their mind and they nabbed him. On inquiry, he revealed his name as petitioner herein. After that the police officials were suspicious that he might be having some contraband. On checking the bag, which was tied on the right side, the police officials recovered 40 bottles of Codeine Phosphate and Chlorophenramine, Maleate syrup and seized the same. After that, the investigator completed the other procedural requirements under NDPS Act and arrested the accused. Based on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner submits that the evidence collected against the petitioner is legally inadmissible. Ld. Counsel for the petitioner further contends that the petitioner has been falsely roped in and he has taken legal recourse by filing a separate petition in this regard. He is a first offender and incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

On the contrary, the State contends that the Police have collected sufficient evidence. Further, the quantity involved is commercial, and S. 37 of the NDPS Act's restrictions do not entitle the accused to bail. The accused has yet not discharged the presumption under S. 35 of the NDPS Act. The crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to society.

REASONING:

The decision of this Court in Satinder Kumar v. State of H.P., 2020 SCC OnLine HP 3276, covers the proposition of law involved in this case, wherein this Court has held that satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The ratio of the decision is that to get the bail in commercial quantity of substance, the accused must meet the twin conditions of S. 37 of NDPS Act. It implies that the accused should satisfy its twin conditions and come out clean.

The quantity of prohibited substance allegedly recovered from the petitioner is eight times greater than the entry level of commercial quantity, which is greater than 250 grams, and thus falls in the category commercial quantity. The petitioner has not stated anything to discharge the rigors of S. 37 of NDPS Act. The grounds taken by the petitioner are not the legal grounds to overcome the rigors of S. 37 of NDPS Act. Given above, at this stage, the petitioner fails to make out a case for bail.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

Given above, In the facts and circumstances peculiar to this case, the petition is dismissed. However, the petitioner shall be at liberty to file a new petition on the same cause of action or different grounds.